Borders of punishments: criminology and migration control

Migration control increasingly resembles crime
control, what’s worse is that migrants are not afforded the same long-fought
for procedural safeguards as suspected criminal offenders. Ultimately, history
tells us that this is a matter of concern for us all, foreigner and citizen
alike

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Whichever way you swing, when you care about
migration control every week feels like an -edge-of-your-seat TV drama. Last
week was no different. The second round of the French election saw a battle for
the hearts and minds of the first round “Le Pen” vote, with Hollande’s
anti-austerity manifesto finally winning over Nicolas Sarkozy’s “get tough on
immigrants” mantra on Sunday. On the same day in Greece, the ultra nationalist party Golden
Dawn celebrated after exit polls showed
them winning enough of the vote for them to gain parliamentary representation
for the first time in Greek history. On Friday, three illegal immigrants tried and failed to elude capture in a raid in Malaysia by hiding under kongsi houses and in a hole under a chicken coop. In the USA, members of an Arizona- based vigilante group called
“Border Guard” have vowed
to continue their self-ordained mission of hunting
undocumented immigrants and drug gangs despite the apparent murder-suicide of their leader, Jason
“JT” Ready.
Even as this article is being written or read, countless people are overstaying
their visas, tearing up identity documents, being searched, arrested,
prosecuted, detained and deported in a never-ending struggle over global
mobility.

Against the backdrop of this everyday pathos,
scholars of all ilks and from all over the world came to the Oxford University
“Borders of Punishment” conference to discuss “the
relationship between immigration control, citizenship and criminal justice” and
to “connect criminological theory to migration studies”.
Until relatively recently, criminology has not had much to say about questions
of migration control. This is not very surprising when one considers
traditional criminology’s narrow focus on “street crime”
(theft, assault, rape, murder) and criminal justice system institutions
(“police, courts and prisons”). However, people in general – and criminologists
in particular - don’t like being kept in windowless boxes. Hence the growing number of scholars who
have started in recent decades to interrogate
this disciplinary boundary, ranging from Foucault’s analysis of the diffuse
process of producing good citizens to Braithwaite's focus on business regulation.
In a pleasing and neatly circular manner, criminology’s widening scope from a
narrow focus on crime to the study of control, order and government pays homage
to the original, 18th century idea of policing, incorporating duties
as disparate as sanitation, tax collection, labour inspection and security.

Outside of the halls of academia, there is another, undoubtedly more
profound reason for criminology’s newfound interest in migration control –
namely, the understanding that at the level of real-life practices, migration
and crime control have started to resemble one another more and more. This
process has many facets: the rhetorical conflation of irregular migration,
terrorism and organised crime and efforts to address these policy objectives
simultaneously (as discussed by Maggie Lee and Darshan Vigneswaran); the
introduction of criminal consequences for immigration offences (Lucia Zedner);
rising rates of refusal for asylum seekers with alleged criminal backgrounds
and the growing tendency for foreign nationals who have committed crimes to be
expelled from a country - even when they have been born and bred there
(Catherine Dauvergne). It is seen in the expansion of the detention estate
(Mary Bosworth), the involvement of police in immigration enforcement and the
extra-ordinary expansion in the range of coercive powers at immigration
officials’ disposal today.

Participants also reflected on the ways in which changing police norms
are reflected in immigration enforcement. Increased use of pre-emptive, actuarial
techniques – such as the “intent management system” in Australia (Leanne Webber
and Sharon Pickering)- to predict
immigrants at high risk of becoming irregular mirrors a shift in the criminal
justice system from a rehabilitation model to a ‘new penology’ based on the logic of
risk management. Another parallel development is the increasing importance of
private security providers and the use of sanctions and incentives to co-opt
employers, universities, doctors, teachers, charities, benefit advisors and
sometimes even family members to police for irregular migrants (Coretta
Phillips). This is similar to the “responsibilisation” process described by
criminologist David Garland, where the state encourages civic actors to police
their own communities. Finally, both migration and crime control are differentiated
by their growing emphasis on information sharing above and beyond any
“on-the-ground delivery of visible police functions”(AKA the bobby on the
beat). The role of technology becomes central, with
the inherent danger is that border control problems will be framed in technical
operability instead of normative terms.

What was just as interesting, however, were conference discussions of
how criminalisation might not be an appropriate description for the things that
are going on in migration control – and why that might be a bad thing. In
practice, much of what happens in migration control is enacted under
administrative law even in those instances whenofficials have recourse
to criminal law. Why? Because it’s easier to do the things you want to do under
administrative law. Centuries of bloody struggle have culminated in sturdy
procedural safeguards for accused offenders in the criminal justice system,
including a fair and unbiased trial and fair warning. These are central to the
system’s legitimacy in the eyes of the public. However, as Mary Bosworth
argues, no such requirement can be found in the immigration detention regime,
where “justice” is meted out arbitrarily and is often inadequately justified.
Hindpal Bhui relayed a shocking case where a man had been detained in the UK
for 6 years pending removal. In the USA, procedural rights that have been
revoked recently include the right to a judicial review of discretionary
judgements pertaining to detention; release; or removal orders affecting
persons having committed an aggravated felony (Chacon 2009). Also of note is
the advent of mass deportations under the “Streamline” program.

How have we allowed this “asymmetrical incorporation of criminal
justice norms” – in which migration control has witnessed an, featuring an
increased use of crime control methods and techniques but without the same
procedural safeguards? One reason is that detention and deportation are not
meant as punishment by those who mete it out and therefore do not justify the
safeguards against punishment given in the criminal justice system. They are
neutral measures. However, Kanstroom
suggests that “deportation is not a punishment because we do not view it as a
punishment” is tautological and ignores the fact that these acts are certainly
experienced as staggeringly punitive by individuals subjected to it. The same
analysis could also be applied to detention. A second explanation is that
criminal law starts from a presumption of membership whereas immigration law
starts from an assumption
of non-membership. The justification here would be: We
treat them more severely because they are outsiders. The big question then becomes how do we conceptualise migrants:
as guests, as potential members, as fellow human beings, as aliens?

Ultimately, it may well be that a migration focus
creates its own “cul-de-sac”, (James Sheptiycki). The Immigration, Asylum
and Nationality Act (2006) widened the category of “deportable”
persons from naturalised citizens to all citizens who would not be left
stateless, including persons born on British soil (Matthew Gibney). What this tells us is something we really
should have picked up in history class, namely that the boundaries of
membership and inclusion are ever-changing and that people who are safe today
may not be safe tomorrow. Migration
management’s distinguishing features are not immutably fixed to the migrants to
whom they originally applied but may well spill over into the routine governance of the established community. In this context, borders are neither a
physical space nor a control device aimed at foreigners. Instead, they are best
understood as diffuse logics of differential exclusion that play out at many
different points throughout our world and whose targets are always changing -
albeit often along predictably racialised and gendered lines. Towards this end,
the scholarship that seems to offer the greatest promise is one that broadly
focuses on the different ways in which various systems of control and exclusion
interact with each other to redraw the meaning of citizenship in the 21st
century.

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